Standing Committee B

[Mr. Bill O'Brien in the Chair]

Special Educational Needs and Disability Bill [Lords]

Clause 17 - Special educational needs and disability tribunal

Question proposed, That the clause stand part of the Bill.

Tim Boswell: As there is not a large number of amendments for the Committee to consider[Interruption.] The Government Whip is in some difficulty; if he cannot see the Opposition, goodness knows what he will do to his own side. I wonder if the blinds could be lowered.
 As I said, there are not many amendments; I think that we may have caught the spirit of the Government's commitment not to table more amendments, about which more anon, but some interesting points need to be made. The best way to raise them is probably in short and pithy clause stand part debates. 
 On rereading the relevant clauses last night, it seemed to me that lessons from settled practice over the Disability Discrimination Act 1995 have been well learned. Saying this is probably a terrible hostage to fortunecertainly Ministers should not ever say itbut the provisions seem technically well-conceived. I hope that they are, because we have no ill will towards them. Indeed, we want them to work properly. 
 In that spirit, I wish to speak about the tribunal. About 20 years ago, I had some experience of a tribunal's operation, and also about how this place works. When I first became a Minister, I was told that as I had already sat on a tribunal and knew about such things, I could handle the clauses of the Education Act 1993 that established the tribunal, so I readily undertook to do that. However, reflecting on my experience leads me to make one or two points. 
 The tribunal will convert itself from a special educational needs tribunal into a tribunal that can also hear complaints made under the Disability Discrimination Act on the conduct of education in schools. That will result in more traffic. The explanatory notes helpfully touch on the fact that that is likely to lead to a requirement for further resources. It is suggested that the extra number of cases will lead to an additional cost in the first year of about £400,000, rising to £1.25 million as awareness grows. We have no objection in principle to people having rights of redress. We back the Bill, and will not complain when people go to the tribunal or to court to claim their rights. However, I should be grateful if the Minister would say a little more about the costs and about the element of conversion. 
 Within the framework of special educational needs, it is reasonable to ask whether the tribunal has worked, and whether the system has been more or less litigious than expected in determining the appropriate provision for the children in question. Does a child need a particular provision? Does a school need to be specified? Do a certain number of hours need to be specified? 
 Our most important discussion on part I was on whether the Bill needed to put the interests of children first, and whether the absence of that priority would help or promote their interests. We remain sceptical about that, but at least the debate was about education. I was a member of the agricultural land tribunal, which had a legal chairperson and two expert assessors, one from either side. When I had done the job for a while, I regularly used to say that I could not remember who had encouraged me to go on the panel, and I did not regard myself as anything other than a practitioner. One considers such matters with an experienced eye, but in a legal framework. 
 The tribunal will no longer cover only special educational needs cases, as it will also be a disability tribunal. The Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), is nodding. We will come to the exercise of jurisdiction in joint claims later. I do not want to chop words or use them too loosely, but the tribunal is, in a sense, a court enforcing human rights legislation. That creates a new dynamic, as different shoulders are needed to consider such matters. 
 In consideration of school provision, the focus will be on the child. However, the chairman must be aware of other human rights issues, such as those involved in employment law and gender or racial prejudice. The context therefore ceases to be purely educational. That is not a difficult change, and I do not suggest that it is wrong to make it. However, it is important that the legal chairperson and the lay members of the tribunal, the appointment of whom the disability organisations will not be consulted on, have broad training. 
 The tribunal's volume of work is now relatively established and broadly predictable, but it may grow and become unpredictable. That work will have a different nature, as it will bring in wider considerations. I am not arguing that the tribunal is the wrong body to handle such issues, because it is not, certainly in relation to schools--we will debate further and higher education later. However, the tribunal and the Ministers who plan the system must be sensitive to the wider issues. Ministers' guidance to the tribunal and the regulations under which it operates must also have regard to those issues. 
 The argument on whether entitlement to speech therapy should be specified in a statement is critical to the relevant pupils and parents. It may be of interest, as a precedent, to the LEA. Such matters have been the substance of the first seven or eight years of the tribunal's work. Now there will be a wider context, and there may be major human rights questions about what is or is not functional discrimination as it affects a school. For example, although the provision is not strictly for schools, I have recently explored with the awarding bodies the offence that might be caused when questions with religious overtones are set in a public examination. They might refer to the keeping of pigs, for example, about which Muslim pupils may feel uncomfortable writing answers. 
 I do not want to debate those issues nowit would be out of order for me to do so. However, there are some wider implications. There is, and I do not say this derogatorily, a growing legal interest in human rights. I can even imagine persons close to the Prime Minister engaging with the special educational needs and disability tribunal in its new role in order to carry forward some great flagship case. Ministers and the tribunal must be aware of these issues, plan for them and aim to contain them. That is not impossible. Cases do not always have to go through the tribunalparent partnerships and conciliation can be used instead. We need to go into this with our eyes open.

John Hayes: I want to make a couple of points by way of amplifying or specifying some of the issues raised by my hon. Friend. I will phrase them, in as friendly a way as possible, as questions to the Minister. Although my hon. Friend is right that these are not principally matters of cost, we need some indication of the Government's estimates of the volume of cases and the resultant cost. It is hard to come to a conclusion about that, but we need a rough approximation of the Government's estimates.
 The second issue concerns representation. We are all anxious to maintain the informality of the tribunals. That issue was touched on in the other place, when these matters were debated there. As my hon. Friend has already said, the informal nature of the tribunal is important if we are to avoid disadvantaging parents and children. It is important to strike a balance between informality and proper representation. Those on one side in a hearing could be disadvantaged if they are not familiar with such proceedings and feel bamboozled or intimidated.

Tim Boswell: My hon. Friend is amplifying my gist very well. Does he agree that whereas tribunals have generally been seen over the years as informal forums for the resolution of disputes, once lawyers get involved in the process, a kind of arms race emerges? Cases can involve a learned counsel, leading counsel and considerations can become protracted, at huge expense. I know from my own experience that that is a matter of some concern.

John Hayes: Indeed, and that is what I am moving on to. The atmosphere created in these bodies, which will have legal force, is critical if we are to give the parents and children who come before them the best possible opportunity to make their case. The necessary balance between informality and proper representation was debated at some length in the other place, and I am sure that the Minister will want to comment on it.
 The third issue is the role of the child in such circumstances. That could be a difficult matter. Lord Ashley of Stoke referred to it in the debate in the other place. He made it clear that the tribunal represented an opportunity for children to put their own perspective. However, the child would need to be assisted in that, and the environment of the tribunal should allow a child to put his or her case, which may be different from that of the parents. The child's view on a given issue might differ from that of the parents. We must ensure that the tribunal is not alien to the expression of such views. 
 I am mindful of the words of Baroness Blackstone in the other place. She said: 
 ``Even in the informal environment of the tribunal an unassisted child is likely to be at a disadvantage which may lead to increased use of representation generally, affecting in turn the informality of those proceedings.''[Official Report, House of Lords, 6 February 2001; Vol. 621, c. 240.] 
Given the tribunal's multifaceted briefit will be involved in issues of disability discrimination and of a narrowly educational naturethose different levels of representation may exacerbate the problem of representation, parental involvement and children's involvement in what we hope will be a positive outcome. This is not an issue of principle; we want to give the tribunals and the Bill a fair wind. However, these details require clarification, and I look to the Minister to provide it.

Margaret Hodge: Clause 17 extends the jurisdiction of the special educational needs tribunal to cases of disability discrimination in schools and renames it the special educational needs and disability tribunal. Its reconstituted jurisdiction will extend only to England and Wales, as does that of the current special educational needs tribunal.
 The hon. Members for Daventry (Mr. Boswell) and for South Holland and The Deepings (Mr. Hayes) raised the issues of cost and traffic. It is very early days and therefore difficult to judge. There is not even sufficient case law under part III of the Disability Discrimination Act for us to predict with any confidence the volume of cases that will be brought under the powers in the new part IV. However, I would draw the attention of both hon. Members to the fact that we established a conciliation service under the Disability Rights Commission specifically to minimise the number of cases that would need to come before the tribunal. 
 The hon. Member for Daventry was with me last night at the reception for disability organisations when I referred to that service as a key element of the role of the new commission. I am watching its development with great interest. It should minimise traffic.

Tim Boswell: I hope that the Minister is right. On Second Reading, I said that experience of the operation of the 1995 Act has shown that employment tribunals, which hear cases relating to part II duties and to which access is relatively easy, have borne very much more traffic than the county courts, which hear cases in relation to part III duties. I accept that that occurred before the establishment of the Disability Rights Commission. My concern is that because this is tribunal territory, which, for an applicant, is relatively easy to access and relatively cost-free, there might be more traffic than either of us anticipates.

Margaret Hodge: That might be true, but I hope that the anticipatory duties on schools and LEAs will ensure that action is taken before a tribunal is needed. I accept the difference between the county court and the tribunal, but as there have been so few cases so far, none of us has much experience of part III. Nevertheless, we make estimates of costs, and these have been supplied to the Committee in documents relating to the Bill. The tribunal has estimated that the cost will be approximately £400,000, rising to £1.25 million in the longer term, and that 20 more staff will be required. However, I would put a number of provisos on those figures as they are guesstimates, and we shall have to revisit them in the light of proper knowledge.
 The hon. Member for Daventry also talked about whether the members of the tribunal would have the appropriate knowledge and experience to deal with discrimination matters in relation to disability

Tim Boswell: Or training.

Margaret Hodge: Yes, or training. I can give the hon. Gentleman some reassurance on that.
 First, the regulations that govern appointments to the tribunal will require its members to have knowledge of disability issues. That is one way of ensuring that appropriate people participate in the tribunal. Secondly, the composition of the tribunal will be not dissimilar to the current composition of the SEN tribunal, in that the chair will have a legal qualification and a minimum of seven years experience, and be appointed by the Lord Chancellor. The tribunal is a non-departmental public body, and has for some time been planning for expansion and changes in its duties and functions. It has also been training people appropriately.

Mr Win Griffiths: I previously referred to the devolution conundrum, whereby some devolved issues, which are the responsibility of the Welsh Assembly, are relevant but there are other, non-devolved matters in the same connection. The tribunal is one such matter, because it will consider issues relating to schools, but the Lord Chancellor's Department is not a devolved Department and the tribunal is not a devolved tribunal. Have there been any discussions with the National Assembly about the possibility, at some future date, of it having a more direct role and about the establishment of a separate tribunal in Wales? In addition, what administrative arrangements will be made in the immediate future, once the tribunal has been established?

Margaret Hodge: English lay members of the tribunal will be appointed by the Secretary of State for Education and Employment, but the National Assembly for Wales will appoint Welsh members. Clearly, we must be extremely sensitive to the Welsh dimension as the development of the tribunal proceeds.

Tim Boswell: May I first respond to the point made by the hon. Member for Bridgend (Mr. Griffiths). It is not simply a matter of the tribunal's jurisdiction. Under clause 18, the tribunal's power to make remedial orders will be binding on LEAs in Wales, despite the fact that they are bespoken to the National Assembly. Therefore, an extra-territorial jurisdiction will impact on them.
 I believe that, in its first seven years of operation, the SEN tribunal has established considerable credibility and done a good job for all parties involved. It is important that we build on that credibility and ensure a constructive outcome.

Margaret Hodge: I, too, believe that the SEN tribunal has been a success story, which we want to develop. We must be sensitive to the Welsh dimension, and review the impact that the legislation has on Wales. It is tricky, because the measure involves both a reserved power and a devolved responsibility, so we must ensure that the two interact effectively.
 The tribunal has a comprehensive and on-going training programme for its members, which includes training on the legal developments, on the new powers created by the Bill and on the implications of the Human Rights Act 1998, which the tribunal will take seriously. The tribunal will enforce new rights under disability discrimination legislation, but it also has a history of enforcing rights with respect to special educational needs. We selected the mechanism for enforcing those rights for many of the reasons that Opposition Members have described. It is informal, it works more quickly and sensibly, and it is more responsive to a child's needs. It puts the educational remedy at the heart of the work that is done, which is vital in ensuring that children develop their potential without suffering any unnecessary disadvantages from discrimination or from their special educational needs. 
 The Disability Rights Commission will be preparing guidance, which will support and inform the tribunal in its new role. We have examined all the perspectives from which the Human Rights Act 1998 might affect the Bill, and have ensured that the Bill complies. 
 I want to mention one or two issues raised by the hon. Member for Holland and The Deepings.

John Hayes: South Holland; I do not want to offend people in North Holland.

Margaret Hodge: I am sorry; I want to answer the hon. Member for South Holland and The Deepings. The desire to keep the proceedings informal reflects our approach to respecting the rights of the child in the tribunal. In seeking effective determinations and in pursuing the child's rights in education, it is better that a parent should bring a case on behalf of the child. Parents have a better chance of identifying the child's rights at an appropriate age and of mounting a challenge.
 The tribunal, rather than any other jurisdiction, is appropriate because it can work more swiftly and effectively, and can focus on an educational outcome for the child, rather than becoming entangled with lawyers and giving an overly litigious and formal impression. The child's rights would be less well served by that than they would by the more informal tribunal.

John Hayes: I am sympathetic to the Minister's case. She may want to deal with two issues that I raised, first about disagreements between parents and childrenwhich is a possibility particularly relevant to slightly older children in secondary education--and secondly, about circumstances in which parents are no longer in loco parentis, for whatever reason. My noble Friend Baroness Blatch raised the latter point in the other place. A conflict of interest might arise with respect to children in care or children whose parents were not in a position to represent their interests, if the local authority were called on to represent a child as well as putting its own case. That is a sticking point in the Minister's otherwise persuasive case.

Margaret Hodge: As to the first point, we are ensuring that the rights of the child are protected in other ways. For example, under the new tribunal regulations, which will come into force in September, local education authorities will be required to state the views of the child or to state why they have not ascertained them. That will be covered by regulation 13. We plan similar provisions in disability-related tribunal regulations. I hope that that provides some comfort for the hon. Gentleman.
 When a child's parents are no longer in loco parentis, social services departments will represent the child's interests and act in loco parentis in relevant circumstances. Local authorities have a duty under the Children Act 1989 to promote the welfare of the child. That may place the relevant departments in conflict with the local education authority, but each would observe the separate duties imposed on it by law.

Tim Boswell: A Chinese wall.

Margaret Hodge: It is a Chinese wall.
 I have explained how we think the system will work in practice. The issues raised by Opposition Members are important, and we considered them when we framed the duties of the tribunal. 
 Question put and agreed to. 
 Clause 17 ordered to stand part of the Bill.

Clause 18 - Jurisdiction and powers of the tribunal

Tim Boswell: I beg to move amendment No. 19, in page 17, line 28, after `concerned', insert
`including any element of apology which is appropriate'.

Mr Bill O'Brien: With this it will be convenient to discuss amendment No. 20, in page 17, line 29, after `relates;', insert
`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.
 We are still dealing with tribunals. I hope that hon. Members will not repeat what was said on clause 17.

Tim Boswell: Thank you, Mr. O'Brien. We shall not do that.
 Amendment No. 19 is about the importance of redress, which can be the cause of great emotion. In the other place, views on that matter were divided, as they may be in the House of Commons. Some hon. Membersthey may not be members of the Committee, but they should show themselves as we need to debate the matterbelieve that the tribunal should be able to order pecuniary redress. I do not seek to exclude the caveat that rules out pecuniary remuneration. I agree with the Minister that that should not be included in the Bill. 
 Although an argument can be made in favour of pecuniary redress, it is, on balance, not right. The strongest argument in favour would be in cases of what might loosely be called wilful or delinquent behaviour by a local authority or a school's governing body. People may feel strongly that an LEA or governors should be punished by way of a fine or punitive damages to stop that happening again. 
 Were you to allow it, Mr. O'Brien, we could have a long debate on the impact of damages in cases of medical negligenceon whether such damages advance the nation's welfare or have negative consequences. I shall not be tempted down that route. Redress is provided for in equal opportunities legislation, and for gender and racial discrimination, but the Bill does not provide for it. Is the Minister comfortable about that? The balance is not right, and the amendments allow me to probe what the tribunal can order. 
 Paragraph 91 of the explanatory notes include a helpful list of the tribunal's 
``wide powers to order any remedy''. 
The list of powers should include the possibility of securing an apology or a re-examination of the case. I have singled out those two points because distressed parents or relatives often want those things to happen after a tragedy has occurred. 
 This may be neither the time nor the place for personal confession, but many of us will have experienced something pretty nasty or distressing, such as a death in the family. The financial implications for the loss of a life are small under English law. There may be damages for the loss of a business partner, a parent or a potential earning stream that would finance a child's education, but damages for death itself are comparatively small, a fact that feeds into my argument that a financial contribution would be inappropriate. 
 Another factor is what I might loosely call the Railtrack argument. Railtrack is a private sector company, but if all that we do every time that it fails is fine it, we make it more difficult for the company to put matters right. In the case of SEN, because of the size of the maintained sector, most of the traffic would be in the public sector of education, and any fines would come out of other educational provision. 
 What do relatives want? I shall recite the sad case of a family in my constituency. The husband and bread winner volunteered to help in a local country park, and met with a fatal accident when driving a dump truck as a volunteer. Someone slipped and put a JCB bucket through him. In due course, the family came to see me about the case. As people do in broadly similar, though perhaps less tragic, incidents, the family wanted the public authority to apologise, and it did so, most generously. The family also wantedI am almost repeating its wordssuch events to be prevented from happening again, as a contribution towards the loss of its loved one. 
 In the real world, we know that some accidents are not as easy to predict as wise-after-the-event tabloid newspapers may say. Accidents may arise through unsatisfactory but institutionally embedded practices. The local authority may not be doing its job properly or sending the right signals. We must provide some differentiation. 
 It is not pleasant for any parent to have to make a case; I almost said that that is not pleasant even when the case is won. Life must go on, but parents want to feel that something positive has been achieved. The right remedy is needed. In my experience, that is not always easy, and the climate of litigation and litigiousness on which we have already touched tends against it. An admission that a terrible mess has been made in a specific child's case, and an apology for it, can be an important solvent of grief. That is the point of the amendment. 
 Amendment No. 20 moves us from the particular to the general. Mirroring the remarks in the sad case to which I referred, parents will say that if working practices are unsatisfactory, the public authoritymost schools are public authoritiesmust ensure that something is done about the problem so that the situation is better in future. It would be unwise to stray into other territory, but we could have a long debate by analogy with, for example, institutionalised racialism. I do not want to do that, but some concerns must be dealt with. Incidentally, in my county, which does not have a particularly high component of ethnic minorities except in one or two places, I had a constructive conversation with our chief constable about his policies. He gave satisfactory answers and had clearly dealt with the issues. 
 If something goes wrong, and a case goes to tribunal, it is not just the money that counts, particularly for the individual. Although we should not forget the prescription for educational remedy, because that is the central point, it is sometimes important simply to have an LEA or a board of governors say, ``We got it wrong, but we are sorry and we are doing something about it.'' 
 Amendment No. 20 sets out what would be done about that. If an LEA had had a dusting down at a SEN tribunal, it would be foolish and inappropriate of it simply to say, without its making any real changes, ``Oh well, we lost that one. Some you win, some you lose. On to the next.'' We want LEAs to say, ``We got it wrong. Perhaps we can learn from that. Perhaps we could do the children in our care and ourselves some good if we adopted a more positive and proactive attitude and actually did something about the problem.'' The Minister and Conservative Members would want that, and the amendment is intended to achieve it. In other words, out of a dispute may come some provision for specific educational remedy and, if appropriate, a generous apology. That must not be a matter of simply offering a few words: the authority must consider the case, learn from it and resolve to do better next time.

John Hayes: I do not want to detain the Committee, and will make only a couple of further points. First, the issue dealt with by amendment No. 19 should be set in the context of prevailing assumptions about the relationship between parents and children and LEAs. Among many parents and young people with special educational needs and, one might say, people with disabilities in general, there is a feeling that those in authority can sometimes be arrogant. Such feelings are often exacerbated by people's sense of vulnerability, and, perhaps, by their earlier life experiences. My repeated experience of such matters suggests that parents frequently feel that the authorities do not take sufficient account of their concerns. They do not show sufficient humility. The apology that the amendment stipulates is designed to allow local authorities in such circumstances to be a little more humbleto say that they got it wrong.

Tim Boswell: If I might just correct a small mistake in terminology in my hon. Friend's powerful speech, it is a matter not of allowing but of requiring authorities to do something about it.

John Hayes: Indeed. I was being excessively polite, as I am wont to be. My hon. Friend is right. The current position is variable, as I would be the first to acknowledge. However, as an apology has frequently not been offered voluntarily, it is vital to introduce an element of obligation. Frequently, local authorities have not shown the requisite humanity and have not made it clear that they sometimes get things wrong. That is why we wish to strengthen the Bill.
 I do not want to open up a hornet's nest, but the amendment would raise the issue of compensation for discrimination, which my hon. Friend has hinted at. That matter was debated at considerable length in the other place, not least by Lord Ashley, who discussed the tribunal's power, when it finds in favour of the parents, to insist that people are properly compensated. As we are probing the Government, it would be useful if the Minister would refer to the issue of an apology, which was debated at some length. I put it no more strongly than that. 
 On amendment No. 20, I want to add one point to what my hon. Friend has said. We might find, as matters proceedthe Minister was right to say that these are early daysthat particular problems arise in certain areas and particular local authorities, and we may find that cases are concentrated in one part of the country.

Tim Boswell: May I assist my hon. Friend by saying that, in conducting its inspections, Ofsted might also find that there is some systematic flaw in provision?

John Hayes: Precisely. My hon. Friend anticipates my conclusion. If there is a concentration of cases in one part of the country, that might be indicative of an endemic or, as my hon. Friend describes it, a systematic problem. That is why it would be inappropriate not to include in the Bill provision for local authorities to learn from mistakes by examining specific examples or a collection of examples. If there is a concentration of cases or a repeated theme, that may indicate that there is a flaw. Amendment No. 20 simply suggests, arguing from the specific to the general, that it would be wrong if the Bill did not cover that possibility, allow local authorities to consider how systems and procedures work, and offer them an opportunity to iron out and amend their practices.
 Once we have had a chance to see how the legislation beds down, get a feel for the number of cases, where they are, and what cases typically arise, we could learn from that experience and incorporate it in good practice. The amendment is constructive and persuasiveI suppose that I would say that. It would help local authorities and give extra protection to people who go to a tribunal, win their case and say, ``Let's hope that this does not happen to anyone else. We have won our case, but we do not want anyone else in a month, a year or five years' time to face the same challenges and go through the same process.'' If the amendment is rejected, intransigent local authorities may not learn from mistakes, and we know from experience that that has happened. Such situations will be testing for the parents and children involved. They would take comfort from an apology and from knowing that their case was a landmark. People are not entirely selfish in such matters; they hope that others will benefit from the difficult circumstances that they have had to endure. On that basis, I urge the Committee to support the amendment.

Tim Boswell: Before the Minister responds, I want to raise a related issue regarding redress. The explanatory note helpfully says that the expanded tribunal will be able to set rigorous deadlines when directing action by schools and LEAs. If those deadlines are not met, the parent can ask the Secretary of State to make a direction to require compliance. I understand that, and it is helpful. However, the issue is not about deadlines, but about the substance of the response made by the school or the LEA. The argument is not about whether something has been done by the deadline, but whether it is consistent with the order made by the tribunal. Perhaps the action taken made a monkey of the tribunal, or was not in the spirit of its findings, which led to a complaint. I am not sure how often that has happened, or how many cases have been taken as far as the Secretary of State, but it would be useful to have the Minister's perspective on that more general issue.

Andrew George: There has been an important debate in the other place on compensation. I am pleased that no amendments have attempted to delete lines 30 and 31 of page 17, which make up proposed new section 281(4)(b) of the Disability Discrimination Act 1995. It has become clear from the debate that, although financial compensation could be attractive, removal of the proposed new section might have the negative effect of creating a quasi-legal process and altering the motivation behind claims for discrimination. The other place considered including financial compensation, but on reflection it is right that it should not be included.
 It is not appropriate for compensation to be related to retribution. The outcome of the process should be a learning experience for all. I hope that the Minister will clarify and amplify the Government's thinking on educational remedy. I am concerned, as are others, that an aspect of educational remedy may be additional teaching, which may be seen in the school as a punishment for failures in the pupil's past. These matters should be treated with sensitivity, especially when discrimination can be proven to have occurred over a long period. In such cases, a long period of educational remedy will be needed. 
 I want the Minister to elaborate on the explanatory notes, so that we are fully aware of what will and will not be included in the educational remedy. To what extent will the school and LEA be responsible for fulfilling the obligations?

Margaret Hodge: I was grateful for that debate, as it gave us the chance to air some issues that had already been heard in the other place, but deserved another brief airing. The argument made by the hon. Member for South Holland and The Deepings was constructive and persuasive, but I hope that he agrees that provision for what he desires is already in the legislation, so the amendment is not necessary.
 All three Opposition Members who spoke mentioned financial compensation. The Under-Secretary of State for Education and Employment, my hon. Friend the Member for Redditch (Jacqui Smith), and I have thought about the issue long and hard. However we played it, we were bound to end up with the possibility of disability discrimination issues being dealt with differently from issues of special educational need or gender and sex discrimination. In either case, that would have created a conflict. There was no way to square that circle. One of the ambitions had to be met, and that would inevitably lead to a contradiction with other legislation. 
 In the end, we decided to ensure that there must be an educational remedy. Therefore, we had to take a coherent approach to education legislation, and to provide for the rights of children under special educational needs provision when framing the disability discrimination provision and dealing with the compensation issue. I agree with the remarks of the hon. Member for St. Ives (Mr. George). The important consideration, which underpinned our approach, was making the child's learning and development central to our action. The educational remedy is therefore the most appropriate. 
 We engaged in extensive discussions, not only with the all-party group on disablement, but with a range of interest groups. I was persuadedas was the Under-Secretary, my hon. Friend the Member for Redditchby my dealings with those closest to the issue, such as the Council for Disabled Children and other members of the national advisory group on special educational needs. I think that, on balance, they agreed with us at the end of the process. None of us found the decision easy, but I think that we made the right one. 
 The arguments that affected our decision included the fact that if financial compensation were provided for in the Bill, the entire focus of the tribunal system would shift towards that and away from educational remedies. That would disbenefit the child in relation to educational opportunity and experience. The informal and friendly atmosphere that is the strength of the special educational needs tribunal would be lost if we switched to financial compensation. We would end up with a culture that was more strongly litigious, more formal and perhaps more adversarial and acrimonious. Changing the nature of the tribunal might put off from pursuing their case parents who felt that their child had suffered discrimination on grounds of disability or special educational need. The greater the informality, the greater the likelihood of less confident parents feeling able to participate in the tribunal.

Tim Boswell: I do not disagree with the Minister. I think that she is essentially warning off any suggestion that the tribunal should provide the opportunity of an outing for gold-diggers. That would be wrong.

Margaret Hodge: Gold-diggers include lawyers, and although I am married to one I am as anxious as others to keep them out of this arena in the interests of children and their education.
 If the focus were on the financial contribution, the root cause of the discrimination may not be tackled. There may be a tendency to think that if a payment of £100, £200 or £2,000 is made, there is no need to bother to tackle the institutional issue that has led to one instance of discrimination and could lead to others. That was another strong argument that informed our consideration of the matter, and led to our decision. That does not mean that there will not be financial costs to schools and LEAs from involvement in tribunals and funding educational remedies. Remedies cost money. We would prefer money to be spent on educational remedies, rather than on financial compensation for individuals.

John Hayes: I understand that argument, which is a good one. However, it was anticipated to some degree by Lord Ashley, in the other place. He talked about the tribunal being more like a small claims court than a gold-diggers' affairperhaps we are talking about bronze-diggers. His said that we could ensure that by limiting the amount of money involved by regulation. I do not necessarily agree with that, but I think that it needs re-airing or re-amplifying, as the Minister described it.

Margaret Hodge: I read that argument, too. However, my view is that when financial compensation is involved, a more litigious atmosphere is likely. Lawyers can currently participate in SEN tribunals; I believe that that happens in one in 20 such tribunals. In our judgment, there would be a tendency for that to increase. In a few cases, an educational remedy will be difficult. However, even in those cases some such remedy will be possible.
 I should like to give the Committee some examples by way of illustration. It has been argued that once a child has been prevented from going on a school trip, nothing can be done. However, the child could be included in the trip of another year group by way of educational remedy. If a child were prevented from undertaking a public examination because insufficient adjustments had been made to enable that child to do so in an appropriate manner, that could be remedied. Although some time would be lost, the child could be given the opportunity to sit the examination once the appropriate adjustments had been made. If an act of discrimination occurs, it is difficult to rectify it 100 per cent. However, in most cases it is not impossible to find some educational remedy.

Tim Boswell: Is not the difficulty with cases in which damage has been caused before the tribunal has considered the case? There might have been two or three years of inappropriate provision arising from the dereliction of either a school or an LEA. No money can put that right, and no educational provision can rescue that situation, although it might ameliorate it. What is required is an apology and a determinationa real determination, not just lip serviceto do better by children when the circumstance occurs again.

Margaret Hodge: That allows me neatly to move on to my next point on the two amendments. Anything that we do in this area deals with the future, not the past, so there will always be a sense of it not being the most perfect outcome for the child. We are trying to identify ever earlier both special needs and disability, and I hope that we are improving our ability to respond to a child's future needs more quickly than we have done in the past.
 I agree entirely that what relatives often want is for people to say that they are sorry. Perhaps it is a good lesson for us as Members of Parliament

Tim Boswell: Some more than others.

Margaret Hodge: I dare not pursue that argument, as I think I would find more instances among Conservative Members--particularly from their time in government--than I would among my hon. Friends. However, we all need to learn the lesson that the arrogance of power and position should not prevent us from recognising when things have gone wrong and from saying that we are sorry. I hope that I can convince Opposition Members that the Bill provides for that. We have enshrined in clause 18 proposed new section 28I(3)(b) of the 1995 Actthe provision that on a successful claim for disability discrimination, the tribunal can make any order that it considers reasonable. The Bill also provides that, in deciding on the type of order that it will make, the tribunal may grant a remedy that will negate or reduce the adverse effect of discrimination. I hope that I have reassured Opposition Members that the Bill gives the tribunal wide powers to order an appropriate education remedy.

Tim Boswell: If the local authority or the school were to regard a tribunal order as unreasonable or impracticable, what redress would that authority or body have? Could it challenge the order? Would it have to go to the High Court?

Margaret Hodge: The tribunal order must be specific. The school will have to take action. If not, the Secretary of State will direct it to do so, as he has done in the past. Of course, the school or the LEA would be able to appeal to the High Court if it were felt that the order was inappropriate or wrong.
 In considering specific cases, the tribunal has the power to order a school or an authority to change its policyfor example, on bullying. If a school has been found to discriminate against a child over bullying, the tribunal can instruct the school to change not only its behaviour towards that child but its wider policy on bullying. The tribunal can also order the discriminator to apologise to the child. Amendment No. 19, which inserts an express power to that effect, is therefore unnecessary. 
 Amendment No. 20 raises the question of whether the tribunal should have the power to invite LEAs and schools to reconsider their procedures for dealing with matters of wider application that may emerge during the hearing of a case. We resist the amendment on a number of grounds. First, it does not place a duty on a school or LEA to comply. Secondly, we do not want the tribunal to be diverted from focusing on the needs and circumstances of the child. Thirdly, nothing in the Bill prevents the tribunal from recording the wider issues in its written decision, but it is not appropriate to give the tribunal that specific power. However, several other mechanisms are in place to ensure that the wider implications of a case are taken on board. 
 First, schools and LEAs have an anticipatory duty to ensure that their policies and practices do not discriminate against children. It would be a rather short-sighted school or LEA that did not have proper regard to that when considering the wider implications of a case that was being considered by a tribunal. If they failed to do so, the LEA or school would be open to further successful claims of discrimination. 
 Secondly, if the school or LEA refuse to have regard to the wider implications of a specific case, the DRC has the power to investigate the LEA or school and to seek an injunctionor, in Scotland, an interdict. The DRC can seek an injunction against an education provider that persistently discriminates, if it believes that without it the provider would continue to commit further unlawful acts. That would apply also to a provider against whom a non-discrimination notice had become final in the previous five years. The Secretary of State has the power to intervene, as alluded to by the hon. Member for Daventry; he has done so in the past, although not frequently. 
 The Bill imposes an express duty on the school and the LEA to implement their plans and strategies on disability and discrimination against children in their schools. There are other ways of monitoring whether schools are complying with the legislation. For example, the schools access initiative will be vetted, and if it is found that schools are not complying with their duties, the Secretary of State will be able to deal with it.

Tim Boswell: One of the by-products of the recent study on the schools access initiative was the discovery that it was only partially taken up, according to whether schools or LEAs were aware of it. Will the Minister ensure that, to borrow a phrase, it is rolled out across the country and that it benefits all local authorities that need it?

Margaret Hodge: In our funding plans, we have for the first time given local authorities three years' certainty. That has been widely welcomed, as has the increase in resources that we have made available to LEAs. Under the Bill, LEAs will have to submit their school access initiative plans, and officials will be able to use those reports to trigger a call-in if they are concerned that the strategy is not being implemented. The hon. Gentleman may like to know that all LEAs have taken advantage of the school access initiative resources made available for 2001-02.
 We have other mechanisms to ensure that schools comply with the legislation. Asset management plans will be inspected by departmental officials. Amendments made in the other place will allow issues of disability to be inspected by Ofsted. Parents and others with an interest will be able to inspect the LEA's or the school's strategy, which will form another check. If parents are unhappy with how a school or an LEA is carrying out its duties, they will be able to complain to the Secretary of State or to the National Assembly of Wales, and such complaints will be investigated. 
 We have put in place a multi-layer, multi-agency set of mechanisms to ensure that lessons from individual tribunal cases will be applied in the wider context. They will put additional pressure on LEAs and schools to comply with the legislation. I hope that I have reassured Opposition Members, and that they will feel able to withdraw the amendment.

Tim Boswell: I thank the Minister. In summary, her answer was good but not good enough. The Opposition attach great importance to the two elements embodied in the amendments. The hon. Lady has probably given sufficient answer to amendment No. 19, and I am minded to withdraw it in due course, but she gave a long, opaque answer to amendment No. 20, in which she deployed a complex set of remedies. I am not as happy with that answer, partly because, if the remedies are real, I do not see why they should not be included in the Bill.
 As we have shown, we are concerned not only about redress for individual children, but about the more difficult cases in which individual LEAs set their faces against making systematic improvements in the sensitivity of their provision, and are happy to take the occasional reverse by the tribunal on the chin and go on to the next act of discrimination or unsatisfactory provision. 
 For that reason, we think that the Bill should include a provision to address that problem. It would provide an invitation that could ultimately be cashed in through the intervention of the Secretary of State, if no one else, on the ground of unreasonable behaviour. It would not only apply to individual LEAs that the tribunal had found delinquent in individual cases, but would require other LEAs to pick up on acceptable practice. That would follow the line taken when concerns about institutional failures in the police and other public services have been transmitted through the system. 
 It is important to make the tribunal mean something by intervening to change provision over the years. We are also concerned that the remedies are opaque, buried and not easily available to the average lay person encountering the tribunal for the first time. Therefore, I shall withdraw amendment No. 19, but am minded to test the Committee's opinion on amendment No. 20. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 20, in page 17, line 29, after `relates;', insert 
`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.[Mr. Boswell.]
 Question put, That the amendment be made:
The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived. 
 Clause 18 ordered to stand part of the Bill.

Clause 19 - Procedure

Question proposed, That the clause stand part of the Bill.

Tim Boswell: I always think that a Division in Committee is rather like a good brisk run. It turns everything up a little, but we do not have to continue at the same sprinting pace all the time. Clause 19 is long, complex and mainly procedural, and I reassure hon. Members that I do not want to generate heat or to divide the Committee. However, I want the Minister to respond to some points.
 The co-hearing of claims under the special educational needs provisions and the disability discrimination provisions was touched on in another place and in the explanatory notes. There should be a single forum wherever possible, if only to spare individual families from hassle, distress, difficulty and even expense. That is a good and sensible aspiration. On occasion, a family may have good reason to think that two matters are discrete, even if othersan LEA, for examplethink that they are the same. In other cases, the tribunal may feel that the issues are separate, although closely related. 
 I should be grateful for the Minister's guidance on whether separate hearings would be possible, with the same base data. How would that work, and would it satisfactorily cover the field? My day-to-day preference would be one hearing for all concerned, where a determination could be reached on both matters at once. However, it is possible that that would not be appropriate in certain circumstances. 
 My other points touch on my tribunal experience of some years ago. There is provision for hearings to be conducted in the absence of any member other than the chairman. That seems sensible in cases of indisposition, in which it would be a pity to have to wait for the person concerned to be available again. I was once empanelled on a tribunal in an incredibly unusual case, which had gone, in a manner of speaking, to the full arms race. Leading counsel had been briefed, at great expense. I shall mention, to cheer the Minister up, that the counsel concerned was an extremely distinguished planning silk, who is a leading light of the Society of Labour Lawyers and head of an Oxford college. The Minister may be able to guess who it was. 
 We listened with amazement to counsel's eloquence for several days, but I was then appointed as a special adviser at the Ministry of Agriculture, Fisheries and Food and immediately disqualified myself from the tribunal. That is about the next worst thing to a judge dying, and the huge expense of the proceedings raised concern. By way of a solution, the parties agreed that I could continue to sit for what was, at that stage, effectively a formal procedure. 
 Bearing in mind that members of the tribunal, as distinct from the chairman, have experience in special educational needs and disability issues, it may sometimes be sensible for them to carry out an investigation when the chairman is not available. I appreciate that the chairman's presence may be necessary when it comes to judgment. However, I remember a case in which two members with farming experience were sent to study how some agricultural procedure was conducted, or a drainage problemI cannot remember exactly what. The chairman said, ``You know about those things. Give us a report, I will consider it and it can be included in the judgment.'' I do not think that that is inherently unreasonable, and it would be useful to make provision for it. 
 Proposed new section 28J(2)(m) provides for 
``taxing or otherwise settling costs or expenses''. 
The Minister has helpfully explained that the arrangements are supposed not to encourage litigiousness and that they should not, wherever possible, involve the use of lawyers to break the informality of the tribunal. There is a danger that some families may be denied justice if they fear that, in accordance with the British legal principle that costs follow the event, they might suddenly receive a bill for local authority costs in relation to a discrimination case, as opposed to a special educational needs case. 
 I recall from my tribunal work that, although we were empowered to make an order for costs, and were tempted once or twice to do so, that could be done only when someone had brought a frivolous, vexatious or otherwise inappropriate case. It had to be very extreme for us to proceed in that way. However, people who feel strongly about the way in which their child is taught or provided for should not be deterred from attending a tribunal because the full weight of the law and costs might fall on them if they were unsuccessful. That would add insult to injury. 
 Proposed new section 28J(5) deals with allowances. It has always been a cause of modest rancour with me that the tribunal on which I served did not pay its members a fee, although it paid expenses. I think that the usual practice that has developed, for example in employment tribunals, is to pay a reasonable rate for the day. If the Minister wants to find good people for the tribunal, she should expect that to be necessary. My recollection is that the special educational needs tribunal operates in that way. However, it might be helpful if the Minister could say something about that when she rises to respond to my points.

John Hayes: I have a small and detailed point, not made by my hon. Friend, which I hope can be dealt with easily. Proposed new section 28J(3) stipulates that the proceedings of the tribunal are to be held in private. We all welcome that, as it would be inappropriate to do anything else. However, it would be helpful to have an assurance from the Minister that it will be considered appropriate, when the tribunal publishes its conclusions, to refer to some aspects of the proceedings, as long as all parties are happy with that. Some issues that arise during the course of the tribunal's proceedings will have a direct bearing on its conclusions, and it may be appropriate to air them.
 If all parties are happy with such references, it is appropriate for such aspects of the proceedings to be made public. It may be implicit that that will happen, in which case there is no problem. However, if that is not implicit, will the Minister say something about the matter?

Margaret Hodge: I hope that I can respond to the good, detailed and technical questions that hon. Members have asked. The first point raised by the hon. Member for Daventry concerned whether separate hearings could take place. I hope that he agrees that the structure that we are attempting to set up is designed to bring everything together into one hearing. That is why we have chosen the format of the SEN tribunal.
 Following the passage of the legislation, we will make regulations that set out the precise circumstances in which a hearing can be a joint hearing on issues of discrimination and SEN. We will hold consultations on the issue, so there should be some clarity on it. Of course, nothing in the legislation would prevent two hearings from being held, if that were appropriate.

Tim Boswell: I am grateful to the Minister. In cases where the interests of justice demand it, or in which, although they are closely related and may converge in the treatment of the individual child, the issues are separate, it is important to provide that separate hearings can occureven if the normal, sensible practice is for them to be conducted together.

Margaret Hodge: I hope that I have given the assurances that the hon. Gentleman sought.
 I am delighted that the hon. Gentleman approves of the provisions in proposed new section 28J(2)(d), which will enable hearings to be conducted in the absence of any member other than the chairman. That has happened occasionally in SEN hearings, but always with the consent of all the parties involved. Obviously, it would occur only in exceptional circumstances, for example where a member had been unavoidably delayed.

Tim Boswell: In that context, will the Minister assure the Committee that the consent of all parties will be required for that to happen? It is a matter of the vires not overriding the individual's rights.

Margaret Hodge: Yes, I can assure the Committee of that.
 The hon. Gentleman's third point related to costs. Under the current system for the SEN tribunal, the regulations state that costs will be awarded only in exceptional circumstances. Indeed, they have been awarded in a handful of cases during the five years since the tribunal's creation. The regulations that we intend to make for the new tribunal will be replicated in disability cases. We do not want parents to be deterred by the prospect of costs. 
 The hon. Gentleman asked whether members would receive allowances, and we already pay fees to members, as well as travel and subsistence expenses. We will do so for new members.

Tim Boswell: The Minister may not want to answer this question substantively, and I do not want to cause a flurry of briefing. On the matter of hearings being conducted in the absence of any member other than the chairman, will she, in due course, consider situations in which it might be sensible for the lay members of a tribunal to examine potential provision in a particular place even when the chairman is unavailable?

Margaret Hodge: We shall obviously have to consider the implications of that, and I shall write to the hon. Gentleman to give him a proper answer.
 The hon. Member for South Holland and The Deepings asked about the tribunal's ability to comment in its summing up on any issues that arise in a particular case. I thought that I had given the Committee some reassurance on that during our previous debate. The tribunal may comment on any issue that it feels is pertinent and that may have arisen as a side issue to the one that impacts directly on the child. We do not want to extend that provision beyond the power to comment. Our view is that the anticipatory powers provided for elsewhere will be sufficient to allow the wider implications of any case to be taken into account. 
 Question put and agreed to. 
 Clause 19 ordered to stand part of the Bill.

Clause 20 - Admissions

Question proposed, That the clause stand part of the Bill.

Tim Boswell: We are moving into the territory of useful assurances on how the provisions will operate, but I want the Committee to pause briefly to consider three points on admissions. First, because the Minister, understandably, does not want to subvert the powers of appealeither on admissions or exclusions, which, for this purpose, we can regard as raising similar issuesshe has excluded them and left them to the competent authorities. I understand her reasoning, although that creates a strange situation, particularly in relation to exclusions, for which a temporary exclusion would be within the power of the tribunal and the more indelible permanent exclusion would be within the power of the appeals process. Will the Minister say something about that?
 My second point is a juridical one. The arrangements for admissions and exclusions appeals will operate in a different context. They will operate not simply to make administrative decisions about admissions and exclusions, but to determine the operation of the Bill in relation to disability discrimination, which is a wide context. They are not, therefore, ancillary to the activities of the LEA and designed to provide an independent focus and natural justice, but will operate, in a sense, as a court of law. I doubt whether the persons involved in appeals are necessarily legally qualified. Nor am I sure whether they should be, because their normal traffic will not be in that area. I imagine that the Minister will say that the circumstances that I have outlined will be exceptional, but, sadly, they are neither unique nor inconceivable. People should, therefore, have access to legal advice. 
 Let me quote an anecdote from my experience on a tribunal. We once needed to subpoena someone, but the tribunal had never done so before, and we had to telephone the Lord Chancellor's Department to find out what to do. That raises the issue of training. The rules of evidence are extremely important in these matters. In other words, the appeals will take on a different character from that which they had previously, and they may be challenged in the High Court or referred eventually to the Secretary of State. 
 That raises the question of whether a decision will be reported and, if it has a wider implication, whether published and noted by other LEAs. A matter may not be just a one-off disappointment for an individual child, who feels that he or she has been unfairly excluded from a particular schoolor not admitted, or excluded after admission. A case may have a bearing on the behaviour of the LEA. Although I do not propose to wrench specific powers from the LEA or from the new framework that has been set up to deal with local admission and exclusion policies, the Committee must ensure that those powers are being handled within the framework of natural justice and that the bodies concerned and their procedures are up to the job of handling these new, and rather onerous, duties.

Margaret Hodge: Again, I stress that we have gone for the existing appeals and exclusion procedures because we wish to retain a procedure that works well and is informed, quick and effective. Where we have considered the existing appeal mechanisms to be suitable and robust, we have put new duties in place within them. The simple reason why temporary exclusions have had to go elsewhere is that there is no existing mechanism for them. Most parents who submit an appeal against admission are likely to submit it on more grounds than just disability. That is why it seemed sensible to deal with the relevant matters together.
 We shall provide appropriate training for members of the appeals panels to ensure that they are aware of their new duties. We intend to revisit the training pack currently provided to lay members of appeals panels, with a view to providing guidance on the new disability duties. I shall write to the hon. Gentleman as soon as I can about whether members of appeals panels have recourse to the advice of a qualified lawyer. 
 We had not thought about any circumstances in which wider dissemination of the information arising from the proceedings of an appeals panel would be necessary or would add value in terms of preventing discrimination in other situations. We certainly do not feel constrained, but if schools had to receive that advice, it would add to their bureaucratic burden, unless there was clear value in ensuring that more bits of paper reached head teachers' in-trays. I know how anxious Opposition Members are for us to minimise bureaucracy. If the hon. Gentleman wishes to pursue the matter, perhaps he will come back to me.

Tim Boswell: The Minister gives me an unavoidable challenge by taunting me about the need not to create additional paperwork. She is right about that, but I am not as sanguine as she is about the wider implications. If a child is disruptive, the nature of the disruption and the damage caused to other pupils might be entirely germane to what happens. If, for example, the behaviour of a child in year 11, whose parents were worried about the conduct of GCSEs, became intolerable and prejudiced the performance of other children, the school might decide to exclude him or her. A sibling in year nine might display similar behaviourthere are often family rivalries; I have a local case in mindand it would be entirely relevant to know something about it.
 Against thatand I make the point only because the Minister needs to debate it in drawing up the regulationswe do not, of course, want to wash in public the dirty linen of the behaviour of individuals. In matters of exclusion, particularly in the context of discrimination, it must be shown to the satisfaction of the general public and of the individual minority communities that there is a fair and principled basis across the piece. That would be relevant if, in a local LEA with maintained schools, one school made many exclusions but had successful appeals, while another with a broadly similar population did not. 
 I am not asking for a weekly law report of every decision. Nor do I need a final answer on the training pack today, but the Minister might consider whether chairmen of appeals panels who think that something has a wider applicationa phrase used already in one of today's amendmentsmight be encouraged to report it and share it with others.

Margaret Hodge: I can perhaps provide some reassurance to the hon. Gentleman. The DRC will produce guidance on how the appeals panels should operate. I am sure that he has seen our guidance so far on the DDA, which contains examples of good practice and possible discrimination issues to which members of the panel should have regard. That guidance is a helpful way to disseminate information on previous cases. An anonymous digest of decisions, not case reports, is published annually. That is a better way in which to disseminate knowledge from previous appeals.
 Overall, we are giving new powers to the DRC and others to mount formal investigations if they feel it appropriate. If an institution's appeals are persistently overturned or if it persistently has children admitted through the appeals mechanism, there might be something wrong with the procedures undertaken by that school. Such a case could be subject to the appeals mechanism. Schools and LEAs have an anticipatory duty not to discriminate, and that duty is crucial. I hope that that will deal with many of the issues raised by the hon. Gentleman. 
 Question put and agreed to. 
 Clause 20 ordered to stand part of the Bill.

Clause 21 - Exclusions

Question proposed, That the clause stand part of the Bill.

Tim Boswell: I shall be brief, as many of our concerns were aired in the previous debate. I want simply to ask the Minister whether there are any financial implications for individual schools in relation to the exclusion provisions on disability discrimination. As she rightly says, the purpose of exclusions and admissions appeals is to provide a quick and relatively straightforward means of resolving issues locally.
 As I said on the previous clause, the panels will have to consider greater complexities in disability discrimination issues, and I hope that they have sufficient legal firepower to deal with them. It is almost certain, a priori, that the panels will take longer, as the issues are complicated and will have to be considered carefully. Advice may have to be taken from the Disability Rights Commission, which may want to be joined as a party with individual applicants, as we shall discuss under a later amendment. There will certainly be more difficulty than in simple cases of bad behaviour leading to exclusions and an appeal. 
 There are several sanctions on schools, of a financial or another nature, such as the pupil retention grant and whether pupils are counted as members of the school for the purposes of performance tables. The latter is not a financial sanction, but is sometimes felt to be. Such matters are frequently raised in a wider context by head teachers who do not think that the present arrangements fit fairly. 
 I have two more points. First, will the rules on exclusions appeals for disability discrimination have any impact on the grants? Secondly, will matters be reopened ex post facto? If schools know where they are financially, they can cope with it, even if they do not like it. If they suddenly find unanticipated, uncovenanted raids being made on their finances through the withdrawal of a grantsomething that may take two or three years to resolvethey would have something to complain about.

Margaret Hodge: I accept that these are complex issues, but I remind the hon. Gentleman that they must still be dealt with within 15 school days after they are lodged, and that the full exclusion appeal procedure is usually completed within 45 days. It is important to reassure parents and children who may want to take advantage of the appeal mechanisms that they should be dealt with within that time, even though they are complicated. Schools will also be expected always to act within the reasonableness criteria that underpin much disability discrimination legislation, and they will always have to justify their actions in excluding or not excluding children.
 Those key aspects of the Bill underpin the rights of the child at school, but protect the school from having to do anything unreasonable or that cannot be justified. The hon. Gentleman is probably aware that the Under-Secretary, my hon. Friend the Member for Redditch, has devolved the pupil retention grant to schools, so there is no question of schools losing access to those resources. 
 Question put and agreed to. 
 Clause 21 ordered to stand part of the Bill.

Clause 22 - Roles of the Secretary of State and the National Assembly

Question proposed, That the clause stand part of the Bill.

John Randall: I confess to being slightly confused. Subsection (8) states that the ``Appropriate authority'' is, for England, the Secretary of State and, for Wales, the National Assembly. The explanatory notes, however, state on pages 19-20 that the clause
``gives the Secretary of State or, as appropriate, the NAW the power to direct an LEA or school'' 
and then that it 
``gives the Secretary of State the power to direct LEAs and schools in England and Wales''. 
What is the reason for that difference? I am sure that it must be obvious, but I would be grateful for clarification.

Margaret Hodge: I shall have to read the clause and the explanatory note. It may save the Committee's time if I respond in writing. On first reading, I do not understand the hon. Gentleman's problem, but may be able to help if he can explain it again.

John Randall: I am sorry for being obtuse; it was not deliberate. It seems to me that the Secretary of State deals with matters regarding England and the National Assembly for Wales deals with matters in regard to Wales. The explanatory notes, however, seem to give the Secretary of State the power to direct LEAs and schools in both England and Wales.

Margaret Hodge: I may be able to help. There are two different powers: the planning duty is a matter for the Secretary of State for Education and Employment and for the National Assembly of Wales; a failure to comply with a tribunal decision is a matter for the Secretary of State only. I hope that that assists the hon. Gentleman.

Tim Boswell: I think that that was exactly the point made by the hon. Member for Bridgend. One is a reserved matter, and one devolved, and that is why there is a difference in the explanatory notes. However, the Minister may still want to give the matter more leisurely consideration.
 Question put and agreed to. 
 Clause 22 ordered to stand part of the Bill.

Clause 23 - Enforcement procedure: Scotland

Question proposed, That the clause stand part of the Bill.

Tim Boswell: I shall try to follow the masterful intervention on the previous clause of my hon. Friend the Member for Uxbridge (Mr. Randall). He reminded me of the person who expressed confusion on a difficult matter, consulted his friend and was advised to go to a conference. On returning from the conference, he was debriefed by his friend and declared himself to be still confused, but at a somewhat higher level.
 With great trepidation, I dip a toe in the water not only of English, but of Scottish law. Although I am aware that there is a Parliamentary Private Secretary in the Committee who will, no doubt, support the cause of Scotland in a silent capacity, I am sorry that the hon. Member for Aberdeen, South (Miss Begg) is unable to be with us. 
 The Scots have not had a special needs tribunal, and it was implicit in the arrangements drawn up by the Conservative Government that they felt that they did not need one. Victims of disability discrimination of all ages must go to the courts to obtain redress in Scotland. That differs from the position in England and Wales, except in the case of post-16 education, where England and Wales are more like Scotland. I am not saying that the situation in Scotland is wrong. Essentially, and not just within the new structure but already, that is a matter for the Scots to decide. However, I am anxious to secure what could loosely be called equality of redress. 
 The Minister will sayrightlythat the Government have provided for everybody to have redress. Obligations under the Human Rights Act 1998 apply across the United Kingdom. An hon. Member representing a Northern Ireland constituency made the point during an intervention on me during a debate on the programme motion, when I was less well-briefed than I am now, about the application of the legislation to Northern Ireland. I could have disabused him, if I had read the explanatory notes with more care. The provisions are not designed to apply to Northern Ireland. No doubt Northern Ireland will have its own procedures for dealing with these matters. 
 Although I do not object to the use of different legal forms or forums for determining people's rights, it is important that people should in general enjoy the same kind of redress. The Minister has made much of the relative informality of the special educational needs tribunal, and, on the basis of experience, we welcome that. However, parents in Scotland have to go to court to claim their rights. It is not difficult to construct a hypothetical case in which a marriage had been dissolved and one sibling had gone to live with a parent in England while the other had gone to live with a parent in Scotland. It may be that, as identical twins, they might suffer from the same special educational need. There would be potential for discrimination. 
 I am, I admit, building circumstance on circumstance, but such a situation is statistically likely to arise. There would be different provision for the two siblings. Whatever happens, people would have to go down different routes to obtain redress. I do not mind that, but if it meant that fewer Scottish parents than English or Welsh parents were able to avail themselves of the right, or if there were particular differences within natural families such as those that I have mentioned, we would not have done ourselves a lot of good. 
 A recent Royal National Institute for the Blind survey cogently pointed that while as many as 25,000 cases were heard by employment tribunals under section (2) of the Disability Discrimination Act, only a handful of casesbetween 40 and 50brought under part III for England and Wales went to court. It is a big assumption to make, but differences in application or compliance between part II and part III duties suggest that whatever the legal form, the avenues of redress are not the same. Whatever else we can say, discrimination on special educational needs in England and Wales is not likely to be hugely different from that in Scotland. I put down a marker that the Bill might not operate in the same way in Scotland, and that it might not afford the same rights there that it does in England and Wales.

John Hayes: For clarity, my hon. Friend might invite the Minister to consider that children living in Scotland being educated in England, or children living in England being educated in Scotland, could throw up all sorts of potential conflicts.

Tim Boswell: My hon. Friend is entirely right. None of us wants the United Kingdom Government to be arraigned under the European convention on human rights for systematically failing to provide the same pattern of recourse in the various countries of the Union. Nor do we want people going to court in Scotland to say that it is not fair that people in England can go to the tribunal. We should raise such matters, but the Minister may want to say something about the Disability Rights Commission, which is a United Kingdom body, albeit with Scottish representation. For the recordI do not like speaking inaccuratelyI do not know whether that is a United Kingdom body or a Great Britain body.

Mr Harry Barnes: It is a British body. Northern Ireland has a general committee on rights, which covers various provisions including disability.

Tim Boswell: The hon. Gentleman is helpful. I remember that the DRC is a Great Britain bodya three-country body. It is important that the rights of Scottish parents should be broadly comparable with those of English or Welsh parents. That is all that we ask. I hope that the Minister can assure us.

Margaret Hodge: The hon. Member for South Holland and The Deepings asked about Scottish children being educated in England and vice-versa. The Bill is clear on that. It depends who has discriminated. If it is a Scottish child in an English school, the case will go to the special educational needs and disability tribunal; if it is an English child in a Scottish school, the case will go to court. That is one of the interesting facets of devolution.
 The Under-Secretary, my hon. Friend the Member for Redditch, suggests that if the Committee agrees, we should note our concern about what happened to my hon. Friend the Member for Aberdeen, South at the weekend. I understand that she fell out of her wheelchair when trying to cross a road, which is why she is not here today. From the work that she and I have done together, I know that she is utterly dedicated to getting the Bill on the statute book. She feels most strongly about it, and is personally involved in it. She will be distressed at not being able to be with us today, and it would be appropriate if the Committee were to send her its good wishes.

Tim Boswell: I am distressed to hear what the Minister said; I was not aware of what had happened to the hon. Member for Aberdeen, South. She is a redoubtable fighter and has made a considerable personal contribution, and I acknowledge what the Minister said about her. We are all mortified, as the Minister must be, to hear the reason for the hon. Lady's absence. I warmly endorse the Minister's suggestion that the Committee send its best wishes to the hon. Lady and our hope that she can return soon.

Margaret Hodge: Under clause 23, a claim made in Scotland by a disabled pupil who has been discriminated against will be dealt with by civil proceedings in the sheriff court. Under subsection (1), the alleged discrimination may be committed by the responsible body, by its employees acting in the course of their employment or by its agents. Under subsection (3), all remedies available in the Court of Session are available other than the award of damages. Subsection (5) adjusts the application of the relevant provisions in schedule 3, which makes further provision on enforcement in Scotland. As with the equivalent provision in England and Wales, a claim has to be made within six months of the act in question.
 We come to the issue of redress. As the hon. Member for Daventry pointed out, the situation in Scotland is not exactly the same as it is in England and Wales. Scotland does not have a tribunal, and cases of alleged discrimination will be heard in the sheriff court. Nevertheless, the sheriff will have a range of remedies at his disposal, including the power to order a responsible body to refrain from discriminatory practices. The sheriff will also be able to order positive measures to be set in place to rectify shortcomings in the educational provision made for disabled children. They are strong measures and we believe that they provide an appropriate means of redress.

Tim Boswell: With the greatest respect, the Minister is missing the point. The issue is not whether the sheriff court has powers comparable with those of the tribunal, but whether the complexity and formality of the proceedings in the sheriff court will make it less easy for parents to make application to the court.

Mr Win Griffiths: Will the hon. Gentleman give way?

Tim Boswell: I would readily give way, but it is the Minister's speech, so I shall end my intervention there.

Mr Bill O'Brien: Order. Can the Minister respond to the hon. Member for Daventry?

Margaret Hodge: If I respond quickly, I shall gladly take the intervention from my hon. Friend.
 We have held discussions with a number of voluntary organisations and several Scottish Members of Parliament. My hon. Friend the Member for Aberdeen, South has also raised many of the issues mentioned by the hon. Member for Daventry. It is a matter for the Scottish Executive. The Under-Secretary, my hon. Friend the Member for Redditch, has been in correspondence with her counterpart in the Scottish Executive about reviewing some of their processes and procedures. They are currently reviewing the process by which they record needs, including the appeals mechanisms. It will be for them to introduce proposals to establish something like the special educational needs tribunal that we have in England and Wales.

Mr Win Griffiths: I thank my hon. Friend for giving way. She has answered the point that I was going to raise, so I shall sit down.

Margaret Hodge: I give way to the hon. Member for South Holland and The Deepings.

John Hayes: I am grateful to the Minister for giving way again. Am I right in assuming that children can appear before the sheriff court? The Minister argued against my earlier point about the worry of children appearing before tribunals. If they can appear before tribunals, might that not create a perverse situation in which the informal tribunals are less child friendly than formal courts? I do not know the answer to that question, but it is an important point.

Margaret Hodge: Yes, children can appear before sheriff courts. That is one reason why Scottish Members of this Parliament, voluntary organisations in Scotland that deal with such issues and the Government, in discussions with the Scottish Executive, have been considering whether a review is appropriate. I am delighted that the Scottish Executive is considering such a review, but they will have to make the final decision.
 Question put and agreed to. 
 Clause 23 ordered to stand part of the Bill. 
 Clause 24 ordered to stand part of the Bill.

Clause 25 - Interpretation

Tim Boswell: I beg to move, amendment No. 21, in page 23, line 24, leave out from beginning to end of line 25.
 This is a probing amendment to deal with a King Charles's head, or friendly obsession that I have had throughout our proceedings, that the Bill should deal as comprehensively as possible with different types of schools. We have not talked much about the independent sector, but the explanatory notes confirm that the independent sector will be covered. It is estimated that a comparatively small compliance cost of less than £1 million a year will apply to the independent sector, although the sector feels the impact of various other costs, including boarding and housekeeping costs in boarding schools. Perhaps the Minister will say whether the independent sector has made any representations to her on its inclusion in the Bill. It would be inappropriate to exclude independent schools, because, as I know from my experience of several such schools, their ability to demonstrate disability-friendly policies is a positive selling point. 
 The purpose of the amendment is to tease out from the Government whether the legislation will include all kinds of schools. More specifically, it seeks to discover whether it will include all kinds of maintained schools that might be established in the future. It would be nice if a different Minister could give exactly the same assurances

Jacqui Smith: No, it is me.

Tim Boswell: It is the same Minister, who, I hope, will give me precisely the same assurances, in her charming way, that if the Labour Governmentor a Conservative Government, in due courseinvent a new sort of school, we will not have to legislate especially for that situation. I am sure that she does not want to spare my labours, and we look forward to long debates in Committee on that matter, but will she clarify the situation?
 My third point relates to Scotland. I notice that proposed new section 28Q(4) provides for an exception relating to Scotlandor does my proposal amend the section that relates to Scotland? One always reads these clauses upside down. Will the Minister give us the following assurances: first, about the situation regarding independent schools; secondly, about the position regarding new types of school that do not yet exist; and, thirdly, will she say whether the interpretation section is comprehensive as between England and Wales and Scotland? It is the common interest of the Committee that we should show a united front towards the component parts of Great Britain, although not, as the hon. Member for North-East Derbyshire (Mr. Barnes) reminded us, Northern Ireland, which is handled slightly differently.

Jacqui Smith: I can, I hope, reassure the hon. Member for Daventry on all three of his points. It is probably worth while saying that the purpose of the interpretation provisions under proposed new section 28Q is to help the reader to interpret the new chapter I of part IV of the Disability Discrimination Act. That is why his questions are justified. We place duties on schools in chapter I and therefore need to be specific about the types of schools to which they apply. Otherwise there would be confusion, which would undermine the Bill's intentions.

Tim Boswell: I do not like to derail the Minister so early in her remarks, but I want to mention something that I did not raise previously, which is information to schools. She rightly points out that the provisions will impose duties on schools. School staff are not sophisticates in the details of discrimination legislation, and they will not have the human resources back-up of local authorities, although they will be able to draw on it. Will the Minister assure us that a simple, user-friendly, intelligible guide will be sent out to head teachers and governorsnot another piece of bureaucracy but something that will make them go about doing what is needed effectively?

Jacqui Smith: Of course, codes are to be prepared by the Disability Rights Commission, and I am sure that those will be accessible and easily readable, but we shall also ensure that information to schools sets out clearly what is expected of them under the relevant provisions. It will not be bureaucratic or difficult to understand. Furthermore, the Disability Rights Commission will be able to provide advice to providers who have specific questions about how the duties relate to them.
 The hon. Gentleman is right to think that in our viewwith which he seems to agreeindependent schools should be covered by the same provisions as other schools. Several organisations have responded to our consultation. Most independent schools organisations have raised queries about the Bill's application to them, but in general we are reassured about the notion of reasonableness. That is important with respect to the hon. Gentleman's point about costs. I agree that it is a positive selling point for any school if it can show that it is accessible and does not discriminate against students on grounds of disability. However, we expect that to fall within the notion of reasonableness. 
 I am happy to give the hon. Gentleman a commitment that if any future Government were to determine new forms and categories of schools, the appropriate way to apply these duties to those schools would be through the legislation passed at the time. I am sure that, given the hon. Gentleman's diligence in pursuing this matter in Committee, officials will make even more sure in future that that is so. 
 As to Scotland, I reassure the hon. Gentleman that the definitions in the proposed new section are, regardless of the legal frameworks of England and Wales or Scotland, intended to ensure full coverage in Great Britain for the relevant duties in all schools.

Tim Boswell: The Minister has given a helpful assurance. My only reservation is that it will be for the Scottish Parliament to determine whether it wants to restructure or re-title schools in Scotland. The Minister will have to ensure that it is aware of that, if it legislates on the matter.

Jacqui Smith: I feel sure that splendid officials deal with the legislation before both this Parliament and the Scottish Parliament.

Tim Boswell: I hope that the Committee will adjourn in a moment, so let us end on a conciliatory note. Before we descend into consensus, we are obliged to have a rattle on such matters, but we do not want the Bill to fail because someone has slipped up. It is important to have the Minister's assurances, which on this occasion have been entirely satisfactory, although I am sad to say that they have not been so on all occasions. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 25 ordered to stand part of the Bill. 
Further consideration adjourned.[Mr. Betts.] 
 Adjourned accordingly at fifteen minutes to One o'clock till this day at half-past Four o'clock.